from the a-string-of-failures dept

We've covered aseriesofembarrassingsetbacksfortheUS government'scaseagainstMegaupload over the past few months. It's a pretty stunning trail of errors by US officials who seemed to think that a scary story about a "bad man" would trump a lack of actual evidence or following legal procedure. While the case may hold up in the long run, it seems like everywhere you look there's evidence of highly questionable activity by the government.

The Frankfurt judges have since rejected this request, because it contains insufficient evidence. The US legal team failed to demonstrate that a web hosting service for the illegal upload of copyrighted files, amounts to a criminal offence.

According to the German 'Telemediengesetz' (communications legislation), a hosting service for foreign files will generally not be accountable unless the host had active knowledge of illegal activity. The judges also emphasised that the concept of knowledge is limited to positive knowledge. Therefore if the service provider believes that it is possible or likely that a specific piece of information is stored on their server, this is not sufficient evidence of knowledge of abuse.

According to the court ruling, there is no legal obligation to monitor the transmitted data or stored information or to search for any illegal activity.

Of course this was the same point that we raised the day that Megaupload was shut down. While it may be true that many Megaupload users have infringed on copyrights, there's a massive leap from that point to the idea that Megaupload is a criminal enterprise -- yet the US government's case basically skips over any details to make that leap. Thankfully cooler heads are recognizing that a significant amount of the US's case seems to be based on a fairy tale that US officials -- under the influence of Hollywood -- keep telling.

Tip to DOJ officials under the sway of Hollywood's version of the internet: remember, these people make their livings telling fairy tale stories. You know those opening credit lines about how something is "based on a true story"? Yeah, quite frequently the actual truth is a long way from what's shown. It seems that you may have been taken in by another such Hollywood "true" tale.

from the well-of-course dept

As the fight over whether or not the US can even charge Megaupload under criminal law continues, the US Justice Department continues to make quite extraordinary claims. If you don't recall, the US filed criminal charges against Megaupload and a bunch of its execs. However, as a US judge noted back in April, under US law it might actually be impossible for the case against Megaupload to proceed, because criminal law requires "serving" the defendant, and the law also says you can only serve companies at their US address. Megaupload is not based in the US and has no US address. The DOJ is trying to tapdance around what the law actually says, but (as Megaupload points out) they can't point to a single real legal citation that supports their position. The DOJ is basically arguing that the law should be what they want it to be... because otherwise the DOJ wouldn't like it very much.

[Judge O'Grady] noted that the "plain language" of the law required sending notice to the company's address in the United States. "You don't have a location in the United States to mail it to," he said. "It's never had an address" in the United States.

Perhaps even more interesting is the claim by the DOJ that even if the Judge rules against them on this issue, they should still be able to freeze Megaupload's assets, because the cases against the individuals will continue.

Not only that, but the government believes it can continue to freeze Megaupload's assets and paralyze its operations even if the judge grants the motion to dismiss. That's because in the government's view, the assets are the proceeds of criminal activity and the prosecution against founder Kim Dotcom will still be pending. The fact that the assets are in the name of Megaupload rather than its founder is of no consequence, the government claimed.

That's a trickier argument to make, though, not a totally crazy one. It's more or less based on the same controversial theory under which the Justice Department seizes and forfeits things like hip hop blogs because someone might possibly get some infringing music from them. But here it's even more complex, because there is supposed to be a separation between the corporation as an entity and the execs who work there as entities. It's part of the reason why "limited liability" corporations exist. There are, of course, ways to get past that, but the government would need to make that case, and they may have a hard time doing so. Either way, it does appear that they're legitimately worried about this rather massive error on their part in bringing the case.

Perhaps, next time, the DOJ won't rush into highly questionable lawsuits just because the MPAA is upset about a website.

from the seriously? dept

We've talked repeatedly about the federal governments' overly-aggressive nature in seizing and forfeiting things like domain names, but the government's abuse of forfeiture and seizure laws goes way beyond just seizing digital assets. Basically, law enforcement often sees seizure and forfeiture laws as an excuse to steal from the public with little to no recrimination.

Thankfully, it looks like the courts may be starting to push back a bit. The Obama administration appears to be losing its case in which it seized millions of dollars worth of assets from the son of the president/dictator of Equatorial Guinea. Included in the haul is an original Michael Jackson crystal covered "glove" from the Bad tour. The feds are claiming that these were ill-gotten gains from corruption. That may be true, but the guy, Teodoro Nguema Obiang Mangue, hasn't been convicted of any crimes either at home or in the US, so the courts are wondering why it should let the US just take his stuff. The feds have a chance to amend their argument, but it's good to see that the judge is quite skeptical that such seizures are legal.

This kind of thing seems all too common with such in cases, where law enforcement goes after the stuff, but never goes after the actual people involved. And, of course, sometimes they make big mistakes. Either way, hopefully cases like this lead to fixing (or getting rid) of the ridiculous process of asset seizures without due process or without any charges being filed. It's not just that it's open to abuse, but that it is, clearly, regularly abused to either enrich law enforcement or just to hassle people the government doesn't like. That shouldn't be allowed.

from the place-your-bids dept

As promised last week, it appears that the auction of the righthaven.com has begun over at SnapNames. The auction will apparently run until January 6th at 12:15 PT. So if you were planning to take up a collection to buy it for yourself, start counting those pennies. There have already been a few bids, and at the time I'm writing this, they're asking a bit over $1,000.

from the start-the-bidding dept

The latest in the continuing Righthaven saga is that as part of the efforts by the court to hand over Righthaven assets to satisfy the court order for Righthaven to pay legal fees in the Hoehn case, the righthaven.com domain has been seized and will be auctioned off. While the domain is currently listed as being in the possession of Hoehn's lawyer, Marc Randazza, Randazza says that it's actually been given to the court-appointed receiver, Lara Pearson, who is planning to auction it off. According to Vegas Inc.:

Pearson added Thursday, “If all goes well, I intend to put the domain name up for auction before the holiday break begins tomorrow, though I have not yet made a firm decision as to where the domain will be auctioned.”

So, get out your checkbooks if you'd like to own a piece of copyright trolling history...

from the is-it-over-yet? dept

The saga of Righthaven continues... and may finally be nearing a close. With Righthaven failing to get a court to change the requirement to put up a bond for the $34k it owes in legal fees for its bogus lawsuit against Wayne Hoehn, the deadline for Righthaven to pay up (or post such a bond) has passed. As such, it appears that the court has now signed off on a writ of execution for the US Marshal Service to seek to get from Righthaven the money owed, including additional accrued costs to make the total at stake: $63,720.80. In fact, they're "authorized
to use reasonable force in the execution of this Judgment/Order." It seems that missing deadlines for filings may be the least of Righthaven's problems at this point.

from the well,-there's-that dept

For quite a while now, we've been hearing how many in the recording industry don't like selling pure music digital files, because they leave out the rest of what people like to get with an album: the booklet, images, lyrics, etc. Lately there have been a few different attempts (with a whole bunch more on the way) to add that sort of information to digital music files. Not so long ago Apple introduced its iTunes LP which hasn't exactly taken the world by storm yet. Now there's another competitor in the space, called MusicDNA, which includes all that additional content. It's main differentiator, though, is that the content can be regularly updated -- but only if you have the official copy, rather than an unauthorized one. I certainly understand the thinking here (it's an attempt to create a "freemium" type situation which encourages people to buy the version with all that other (updating) content. But I do wonder if the updating will freak some users out -- knowing that they want to buy something that isn't going to change over time in any way. I like the basic idea that content could be added to (which certainly could be a reason to buy) so long as old content can't be tinkered with/deleted (it's not clear in either article here). Another article suggests that the updated content would be for things like concert listings or Twitter feeds, which actually makes sense. Though, seeing all that, I wonder if this file format actually competes with the new trend for musicians to put out iPhone apps that sound like they basically do the same thing as this new MusicDNA format does.